OLADIPO DUROSIMI ETTI v. OLUREMI TINUBU & ORS.
(2011)LCN/4884(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of November, 2011
CA/L/EPT/NA/003/11
RATIO
PRELIMINARY OBJECTION: REASON FOR CONSIDERING FIRST THE ARGUMENT ON THE PRELIMINARY OBJECTIONS
Before delving into the consideration of the issues as highlighted above, it is important to and desirable, as is the practice and law, to first consider the argument on the preliminary objections, as a determination of them may in some circumstances be determinate of the appeal. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
GROUNDS OF APPEAL: WHETHER A GROUND OF APPEAL MUST ATTACK THE DECISION OF THE LOWER COURT ONLY ON ISSUE(S) DECIDED BY THE COURT OF TRIAL
I think the grounds of appeal effectively related to and challenged the decision arrived at the lower tribunal. See trustees PWA INC A.A.C.C (2002) 14 NWLR (PT 786) 78 wherein it is stated at page 450 reproduced by learned counsel for 1st respondent that: “An appeal is a challenge against the decision of a trial court and it is never predicated on what a court has not decided in its judgment or ruling. A ground of appeal must attack the decision of the lower court only on issue(s) decided by the court of trial” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JURISDICTION: IMPORTANCE OF JURISDICTION; CONSEQUENCE OF THE ABSENCE OF A CONDITION PRECEDENT FOR THE ASSUMPTION OF JURISDICTION
Jurisdiction is a threshold issue and once it is discovered that a court has no jurisdiction, its determination, however eloquent is null and void. See Madukolu Vs Nkemdilim. Once a condition precedent for the assumption of jurisdiction was absent, there was no justification for any further steps in respect of the matter. See Okereke Vs Yar’ Adua (SC) (2008) 12NWLR (PT1100) 8 MJSC 182 at 202-203… PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
ABUSE OF COURT PROCESS: WHAT THE TERM ABUSE OF COURT PROCESS ENTAILS
… this Court (at its Lagos Division) in Miss Nkiru Nzegwu Amobi V.Mrs. Grace O. Nzegwu and Others (2005) 12 NWLR (PT 928) 120 at 143 had stated thus: “It is undoubtedly an abuse of court process for a litigant to initiate concurrent suits in respect of the same reliefs before the same court and / or different judges … It was not open to the court to consider the very process that had been established to be illegal and incompetent. The correct procedure for the lower court to resort to was to stay or strike out the subsequent suit”. It is to be noted however that a common feature of the term “abuse of court process” is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. A court of Law which is also a court of justice will always prevent the improper use its machinery and will not allow it to be used as a means of vexatious and oppressive behavior in a process of litigation. See Ette V. Edoho (2009) 8 NWLR (pt 1144) page 601 per Awoade, J C A. At page 610 of the report, Omokri, J.C.A stated bluntly that such proceedings are not brought bonafide in the sense that they are brought mainly to annoy, irritate or harass the opponent, or are calculated to impede the iniquities appurtenant to the aim and purpose of the action. The term also connotes that the powers of the court must be used bonafide and properly and it must not be abused”. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
INTERFERENCE WITH THE FINDINGS OF THE LOWER COURT: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH THE FINDING OF FACT OF THE TRIAL COURT
In Mustapha .Vs. Corporate Affairs Commission 2009 (pt 1142) 8 NWLR page 43 at 51, this court per Aboki, JCA had this to say as to a finding of fact of a Trial court, thus: “An Appellate court will not interfere with the finding of fact of the Trial Court unless when it is clear that the finding is perverse and not flowing from the facts relied upon or Is not a proper exercise of judicial discretion. See Amasikwe VS Registrar- General CAC (2006) 3 NWLR (pt 968) 462 at 493 to 495; Agunbiade Vs State (1999) 4 NWLR (pt 599) page 39 “. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
ABUSE OF COURTS’ PROCESS: WHAT THE TERM ABUSE OF COURTS’ PROCESS ENTAILS; PROPER ORDER TO MAKE WHERE COURT’S PROCESS IS ABUSED
Abuse of Courts’ process postulates a situation where the process of the Court has not been used bonafide or where the new action is malafide. CBN VS AHMED & 2 ORS 2001. FWLR Part 56 at 670 at 672. It includes improper use of legal process and abuse of legal procedure. And what the Court would do where process is abused is to dismiss the process. Where the Court’s process is used as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused, this amounts to an abuse of Courts’ process. Even where a party strictly complies with the literal terms of rules of Court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process CASTANVHO VS BROWN AND ROOT (U.K) LTD 1981. AC. 557. As aptly put by GALINJE JCA in INTERNATIONAL BANK FOR WEST AFRICA (AFRIBANK NIG. PLC. VS. FOLA SASEGBON (2007) 16 NWLT Pt. 1059. Pg. 195. “An abuse of Courts process is a product of facts” and this can be gleaned from affidavit evidence. PER RITA NOSAKHARE PEMU, J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria
Between
OLADIPO DUROSIMI ETTIAppellant(s)
AND
1. OLUREMI TINUBU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER, LAGOS STATE
4. THE RETURNING OFFICER, LAGOS CENTRAL SENATORIAL DISTRICT, LAGOS STATERespondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the National and State Houses of Assembly Election Petitions Tribunal holden at Lagos, (Hereinafter referred to simply as the Election Petitions Tribunal). The appellant as petitioner had filled an election petition against the named respondents on 29th,April 2011 praying for the nullification of the election of the 1st respondent into the office/seat of the Senator, Lagos Central Senatorial District held on 9th April, 2011 and for fresh election to be held to include the petitioner who was validly nominated by his party, the Labour Party, but unlawfully excluded from the election ( see the election petition at page 1 of the record of Appeal)
The first respondent filed a 1st respondent’s notice of preliminary objection and a reply to the petition on 24th May, 2011, ( see pages 64-244 of the record) while the 2nd -4th respondents filed their 2nd -4th respondents’ notice of preliminary objection and reply to the petition on 7/6/2011 ( see page 245-266 of the record)
The petitioner filed his petitioner’s reply to first respondent’s reply on 31st May 2011, ( at page 267-272) and his petitioner’s reply to 2nd -4th respondent’s reply to the petition on 29/6/2011, ( page 273-277).
By a ruling dated 5/9/2011, (see page 347-379) the trial tribunal held that the prayer for setting aside the pre-hearing notice in the 1st respondent’s motion filed on 7/7/2011, had already been canvassed as ‘A’ in the 1st respondent’s motion of 11/6/2011, thus it would resolve the issue formulated in the 2nd motion along with issue ‘A’ in the 1st motion of 11/6/2011, which is a failure by the petitioner to apply for a pre-hearing despite receipt of the respondent’s reply ( at page 350 and 356). The tribunal had concluded that
“(1) Exhibit BBB, the letter written on 7th June 2011, by SG Salau , ESQ, counsel for the petitioner for issuance of pre-hearing notice in this petition is incompetent in Law and is hereby struck out.
(2) The entire pre-hearing sessions conducted on the basis of the aforesaid letter in this petition is null and void and is hereby set aside.
(3) The petition filed by the petitioner in this action constitutes an abuse of tribunal’s process and is hereby dismissed.
(4) The petitioner is hereby ordered to pay the first respondent the sum of N100,000.00 (One Hundred thousand naira) only for this failed petition.
(5) This election petition is accordingly determined and disposed” (at 379).
The ruling aforementioned was a consequence of the petition that had its trial commenced by a letter to the tribunal secretary whereby appellant’s counsel applied for the issuance of the pre-hearing form. The petitioner’s reply to the 1st respondent’s reply was served on the respective counsel to the respondents on 9/6/2011 (see affidavit of service at pp 227G and 277 H).
Based upon the said application, the secretary issued form TF 0007 titled “hearing notice for pre-hearing session” which was also paid for by the petitioner (see exhibit DE2 dated 10/6/2011, attached to the petitioner’s counter affidavit filed 12/7/2011).
When the suit came up in open court on 13/6/2011, counsel for the 1st respondent made an oral application for the dismissal of the petition for non-filling of petitioner’s reply to the 1st respondent’s reply and application for issuance of the pre-hearing notice. The said oral application was withdrawn upon petitioner’s counsel pointing out that he had filed the petitioner’s reply to 1st respondent’s reply and an application for issuance of the pre-hearing notice had been filed; and upon confirmation of same by the tribunal, the oral application was withdrawn, upon which the tribunal delivered the ruling discountenancing the application (see page 307 )
The 1st respondent had filed a notice on 11/6/2011 seeking an order dismissing or striking out the petition for being incompetent and /or vesting no jurisdiction in the tribunal to adjudicate on it.
The 1st ground of the said motion was that
“the petitioner had failed to apply for pre-hearing notice despite receipt of the respondent’s reply.
Pre-hearing sessions were held between 17/6/2011, and 8/7/2011. However on 7/7/2011, the 1st respondent filed another motion on notice for:
1. “An order of this honorable court setting aside the pre-hearing notice issued in this petition for being incompetent.
2. Further to “1” supra, an order of this honorable tribunal dismissing the petition herein”
The petitioner filed a counter affidavit to the motion on 12/7/2011. With all parties having exchanged written arguments, the 2nd-4th respondent’s also filed a motion on 7/6/2011 seeking the dismissal of the petition on the grounds of abuse of process and lack of jurisdiction. All the motions were heard together and ruling reserved.
This appeal is a product of the reserved Ruling which was delivered on 5th September 2011 dismissing the petition. It is contained at pages 346 – 379 vol. 1 of the record of Appeal. The Notice of Appeal containing Nine (9) grounds, dated 16th September, 2011 is contained on pages 380 – 391 of Volume 1 of the Record of Appeal.
The appellant formulated 4 issues for determination to wit;
1. Whether having held that an application for pre-hearing notice should be by motion and not by letter and that the pre-hearing sessions are null and void, and thus set aside, the election tribunal was right in assuming jurisdiction over the respondents’ motions and dismissing the election petition based thereon, (grounds 1 and 2).
2. Whether the dismissal of the petition based on the 1st respondent’s motion filed on 11/6/2011 was pre-emptive of the time allowed the petitioner to apply for pre-hearing notice having filed a petitioner’s reply, and if so, whether the said application, the proceedings and ruling thereupon are null and void? (grounds 3,4,5).
3. Whether, in any events, the dismissal of the petition for abuse of court process was not wrong. (Grounds 6, 7, and 8).
4. Whether the election tribunal was right in the circumstances, to strike out the petitioner’s written address filed on 18/6/2011? (Grounds 9).
The 1st respondent filed a notice of 1st respondent’s intention to raise and rely on preliminary objection under order 10 rule 1 of the court of Appeal rules and section 240 of the constitution of the Federal Republic of Nigeria 1999 ( as amended). Note that the 1st respondent also filed the 1st respondent’s brief of argument incorporating the notice of preliminary objection of the 1st respondent, and however took liberty to raise 2 (two) issues for determination in case the preliminary objection turns out to be unmeritorious. The 2 issues formulated are couched thus:
“3.0 issues for determination
3-1 Issue 1
1. Whether the decision of the lower tribunal in disposing of and determining the petition before it partly on the basis that the application for pre-hearing was incompetent can be set aside, particularly, when the appellant is not challenging the said finding. (Grounds 1, 2, 3, 4, &5)
11. Whether the petition at the lower tribunal was not abusive thus making it liable to the sanction of dismissal? (Grounds 6, 7, 8, and 9)
The 2nd -4th respondents on their part by their amended reply brief filed on 25/10/2011, but deemed filed on 28/10/2011, by order of this court filed a notice of preliminary objection, wherein he raised severally issues just as those raised by the 1st respondent in the discussion to follow subsequently. It is, however, necessary to point out that, this set of respondents also formulated 2 issues for the determination of this court.
They are VIZ:
Issue 1
” Whether the lower tribunal rightly assumed jurisdiction in entertaining the respondents’ motions of 11/6/2011, 7/7/2011 and 7/6/2011
Issue 2
Whether in the circumstances of the petition, the lower tribunal was not right in holding that the appellant’s petition constituted an abuse of court process”
I have perused the issues formulated by the respective parties. I see them as similar in all situations and encapsulated in the appellant’s 4 issues as framed. I shall therefore treat the appeal on the basis of the appellant’s issues. For one, the issue No 1 of the 1st respondent can be adequately treated as it is covered and encapsulated in the appellant’s Issue No. 1
Issue 2 of the 1st respondent is the same with issue No. 3 of the appellant and issue No. 2 of 2nd-4th respondents and 1st respondent’s issue No 1 and 2nd-4th respondent’s No.1 are similar to appellant’s issues 1 and 2 and are encapsulated therein.
Before delving into the consideration of the issues as highlighted above, it is important to and desirable, as is the practice and law, to first consider the argument on the preliminary objections, as a determination of them may in some circumstances be determinate of the appeal. The 1st respondent at pages 5-10 of his brief of argument wherein the argument on its preliminary objection are embedded, forcefully argued that upon sober perusal of the appellant’s notice of appeal, the grounds of appeal touch on the competence of the applications before the tribunal and that arguments proffered in support do not relate to the ruling or decision appealed against; learned senior counsel submitted that the ruling turned on the fact whether a letter satisfied the requirement of par. 18(1)(2) of the first schedule to the Electoral Act and par. 47(2) thereof.
Counsel argued that the grounds of appeal do not challenge the findings of the lower tribunal on the mode of application for pre-hearing, rather it is a complaint against the moving and grant of application without leave for the respondents’ application for the dismissal of the petition. It would appear on its face to be a good objection, but a holistic view of the grounds of appeal and issues distilled there from and the argument of the appellant’s counsel, to my mind brings to the fore the fact that the appellant is complaining that the conclusion arrived at that the mode of application was wrongful under paragraphs 18 (1) and (2) and 47 (2) of the 1st schedule to the Electoral Act was wrong as the conclusion thereof was arrived at following an application that was not brought in accordance with the electoral act, to wit- an application brought outside the pre-hearing session and without a prior leave been sought and granted.
I think the issues arise from the ground\s of appeal and relate to the decision appealed against. To expect mathematical exactitude as to the Nitty gritty of when an issue can be said to have arisen from a ground of appeal or decision arrived at and being appealed, to my mind would occasion a miscarriage of justice. It is a matter of style largely depending on the drafting skill of individual parties cum counsel.
It is in this circumstance that I do not accede to the submission of learned senior counsel for 1st respondent that the grounds of appeal be struck out for incompetence on the ground that they do not challenge the ratio of the decision appealed against.
I think the grounds of appeal effectively related to and challenged the decision arrived at the lower tribunal. See trustees PWA INC A.A.C.C (2002) 14 NWLR (PT 786) 78 wherein it is stated at page 450 reproduced by learned counsel for 1st respondent that: “An appeal is a challenge against the decision of a trial court and it is never predicated on what a court has not decided in its judgment or ruling. A ground of appeal must attack the decision of the lower court only on issue(s) decided by the court of trial”
From the records, it is plain that the decision was based on the issues whether a letter could amount to an application for pre-hearing under the par 18(1)(2) and par. 47 (1)and (2)and also whether the applications or motions brought by the respondents in that respect were validly brought to warrant a determination of the main issue. It is in this respect that I think a consideration of the applications -i.e motions were issues that were determined and they also arose from the decision appealed. It is gratifying that learned senior counsel for 1st respondent concedes this fact when in his address at page 9 of 1st respondent’s brief of argument, he submits that the ground of appeal must by necessary implication be directly (not indirectly) predicated on the decision of the trial court which it urges the appellate court to reverse or set aside where, therefore, by necessary implication it is predicated and referable to the trial decision on any main or subservient issue that arose there from, it is in my view competent and shall not be struck out as sought.
Now to the preliminary objections of the 2nd- 4th respondents. This set of respondents had raised and incorporated arguments in respect of their preliminary objection in their amended 2nd-4th respondents brief of argument filed on 25/10/2011 but deemed filed on 28/10/2011.
Essentially, the objections kick against the issue raised as to the preemptive nature of the application to dismiss the petition. That it was raised for the first time on appeal. While Honika Sawmill (Nig) Ltd Vs Hoff (1994) 2 NWLR (PT 326) 252 at 261 par F-H (SC) is no doubt a binding decision on the law that issues must arise from a decision to make them competent, it is my view, however, that all the grounds of appeal and issues distilled there from arose at the trial and issues were so joined and a determination made therein in the joint ruling delivered. Issue 2 of the appellant is not incompetent; so also the grounds 3,4 & 5 from whence the issue was distilled were not abandoned as submitted. On the submission that the appeal was academic as a ruling in favour of the appellant that he had a right to apply for a pre-hearing conference notice which time had not lapsed, that it would confer no utilitarian benefit on him, I think that, that is not the issue. If a party complains of a breach of his right of fair hearing, that alone is a violation of his constitutionally guaranteed right. That is an issue germane and worthy of being raised at any time and cannot be said to be an academic exercise. Appellant had complained, that the 2nd -4th respondents’ brief was served on him on a date that still allowed him the benefit of unexhausted time to apply for a pre-hearing notice. The case of Okereke Vs Yar’Adua cited is inapplicable, therefore. Accordingly, I hold in respect of the preliminary objections of the 1st and 2nd -4th respondents that each has no merit on all the grounds argued. They each fail and are dismissed as the appellant had raised his grounds of appeal from the judgment appealed from and so also the issues raised emanated therefrom. Secondly the issues were not academic as the right to fair hearing and non compliance by the court with the provisions of the rules that allowed the appellant to take steps had been violated. It was this truncation in the exercise of a right that was complained of and indeed the precipitate and premature closure of pre-hearing, (even if it was considered initiated by the wrong mode).
I must confess that at its face value, I was initially almost swayed by the erudite submission of learned counsel for the 2nd -4th respondents on the issue of the appeal being academic; however upon a reconsideration, one sees this thread; that is- that the motions were determined, will not be condoned for the reason of possible failure in the petition.
This now leaves the coast clear for a consideration of the issues formulated by the appellant which I had adopted for the determination of this appeal. By the appellant’s brief of argument, as stated earlier in this judgment, 4 issues have been distilled. Starting from issue No. 1: that issue, already reproduced elsewhere in this judgment, is distilled from grounds 1 and 2. The arguments are contained at pages 4-7 of his brief. It was argued that the tribunal had voided the letter for pre-hearing issued as incompetent and therefore had no jurisdiction to have proceeded to consider motions filed on 11/6/2011 by 1st respondent and on 7/6/2011, by the 2nd -4th respondents; that the trial tribunal had become functus officio immediately , It found that it had no jurisdiction.
Jurisdiction is a threshold issue and once it is discovered that a court has no jurisdiction, its determination, however eloquent is null and void. See Madukolu Vs Nkemdilim. Once a condition precedent for the assumption of jurisdiction was absent, there was no justification for any further steps in respect of the matter. See Okereke Vs Yar’ Adua (SC) (2008) 12NWLR (PT1100) 8 MJSC 182 at 202-203 where no extreme circumstances are shown and leave sought and obtained, it cannot be granted.
That the court lacked competence and jurisdiction to entertain the motions on notice filed by the 1st and 2nd- 4th respondents. That the proceedings and rulings are therefore a nullity. It is only the procedure provided by a statue for doing a thing that should be followed; That no leave to move the application outside the prehearing period was sought and granted. Nwankwo Vs Yar’ Adua, LCB plc Vs AG Anambra State referred.
I observe that all the motions had already been taken at the prehearing session that was impugned by the respondents and the tribunal. It cannot be said that the assumption of jurisdiction on the motions was subsequent the prehearing, therefore. The motions were earlier on argued and adjourned for a ruling. See page 364 of the record.
The tribunal was therefore not wrong in assuming jurisdiction on those motions, not withstanding that it may not be right in the decision arrived thereon. The duty to decide a petition does not derogate from the power and duty of the tribunal to consider and determine all pending motions filed before it.
The motions may be the activating agents, but their consideration did not constitute the reason for the decision of the tribunal. The bringing of the motions did not also constitute the reason either.
Issue 1 is resolved in favour of respondents and against the appellant as the tribunal had the jurisdiction to: (1) determine all the motions pending (2) – to deliver ruling and judgment (3) no miscarriage of justice has been caused in considering the motion in the circumstance.
Issue No 2
The Appellant had argued that the dismissal of his petition before the filling of his reply and upon the motion to dismiss his petition, which motion was filed on 11/6/11 when the 1st Respondent’s reply was only served on him on 9/6/11 and within an unexhausted limited time to so do and to apply for a pre hearing conference was pre-emptive of his right to so do.
The 1st Respondent had resiled from the motion of 11/6/11 when it realized the service of the 1st Respondent’s Reply on the Appellant to have been effected only on 9/6/11. The decision was not based on the said motion of 11/6/11 and the grant was not, therefore, pre-emptive of the right of the Appellant to file his application for a pre-hearing notice as his right had not been waived nor time for the exercise thereof lapsed.
The Appellant wrote a letter for the issuance of a pre-hearing Notice. See page 301 of the record. If the application was disregarded and the petition dismissed on ground of no application for pre-hearing within time allowed, that would have amounted to a violation of the constitutional right to fair hearing. See OKAFOR Vs A-G (1991) 6NWNR (pt 200) 659; Nwankwo Vs Yar Adua; Mc foy Vs UAC (1961) 3WLR 1405 at 1409; Idris Vs ANPP etc.In the instant appeal, Appellant’s right to apply for pre-hearing Notice had in fact not coalesced. The Tribunal did not so hold. Rather, after a consideration of the processes and mistaken in the computation of time by making no reference thereto and the subsisting right of the petitioner/ Appellant, a decision that the petition was incompetent for being activated by a pre-hearing application by letter was taken.
In the circumstance, the dismissal of the petition was not pre-emptive of the right of the petitioner/ appellant to apply for a pre-hearing Notice, (which he had in fact and in law already done).
This issue is resolved against the Appellant and in favour of the Respondents.
ISSUE NO. 3
The arguments of the respective parties by their counsel border on the question whether or not the dismissal of the petition on the ground of abuse of process was not wrong.
Appellant’s counsel had adopted his arguments on issue No 1 and argued that the Tribunal had no further jurisdiction to have delved into the hearing of the matter let alone arrive at a conclusion that the petition was an abuse of court process. The petitioner had also contended that there was no legal basis for a consideration of the objection relating to abuse of court process as the point ought to have been raised in the Respondents’ Replies and tried in the substantive petition; and secondly that there was no legal evidence in proof before the tribunal of the multiple suits complained of (see pages 132 and 357 of the record). Learned counsel for the appellant had argued that, in violation of paragraph 12(5) of the Electoral Act 2010, 1st schedule thereof, the 1st Respondent’s counsel tried to raise an objection not stated in the body of the Reply.
I have seen the 1st Respondent’s Reply and also the 2nd-4th Respondents’. They both allude to complaints of abuse of process. They have incorporated the arguments also in their briefs. I do not think, it is a violation as the Respondents particularly the 1st Respondent raised all objections in their Replies. (See pages 64-244 and 245-266) of 1st and 2nd – 4th Respondents Replies wherein their preliminary objection and Replies raising same within, as relating to abuse of court process are clearly set out.
The determination of the issue of abuse upon the preliminary objections was therefore not premature as submitted by the appellant learned counsel. The authorities in support, though good law does not apply to the facts and circumstances of the petition in this appeal, therefore. The cases of Terab Vs Lawan; Amadi Vs NNPC and Elegbe Vs Oloyo referred to in Appellant’s brief are inapplicable, with respect.
However, the question remains: Is there proof of abuse of court process by the Appellant/petitioner? His learned counsel argues that there is none as no process of the Federal High Courts alleged to have been filed, thus bringing about a situation of multiplicity by those filled at the Tribunal had been proved. That the references or existence of those cases as a fact coming by a further affidavit did not cure the defect occasioned by their non- proof at the time the Tribunal relied on them to make a Ruling. That the Tribunal made no ruling on the objection and smuggled in those facts and thus denied him a right of fair hearing. That even if the further Affidavit could be allowed to stand, ex-arguendo, the documents are inadmissible because they are not stated either to be certified true copies or photocopies of certified true copies of the filed processes, which alone is admissible. S.95 (A). Evidence Act and Onobruchere vs. Esegine (1986) 1 NWLR (pt 19) 799 referred. The Respondents hold a contrary view.
I have seen the processes, which existence is acknowledged by the Appellants’ learned counsel at page 14 of his address where at Par. C 18 he starts by the words ” Further even when one looks at the so called process…”
Be that as it may, the processes are at pages 158 to 192 of the record. They are the certified true copies of the Appellant Affidavit indicating the existence of a suit before the Federal High Court, Lagos and Abuja by the Appellant/petitioner. This is evidence of the facts averred in the motion that referred to abuse of process which pleadings was the affidavit in support, which in law was not expected to plead evidence in any case. That evidence has now been brought forward by the further Affidavit which had not been shown to have been brought outside the pre-hearing period with leave.
What is left is a consideration of the petitioner’s learned counsel’s objection in address to the effect that the said petition cannot be a multiplicity and abuse of process as the parties, subject matter and reliefs sought must be shown to be the same. He had argued that the requirements are mutually exclusive. Ogoejeofor vs Ogoejeofor (2006) 3NWLR (PT 966) 205 at 233 C-G (SC) referred. Learned Appellant’s counsel had argued that the other petition before the trial Tribunal was that instituted by the Labour party and for different reliefs as claimed by the appellant in this appeal. That the submissions were not considered, even when under S. 137 (1) of the Electoral Act, both the petitioner and his party were entitled to present petitions to challenge the election and that the suits are pre-election suits. That the cases of Agwasim vs Ogichie, Dingyadi vs. INEC (No I) relied upon were in applicable. So also Umeh Vs Iwu’s case was also submitted as inapplicable to the petition leading to this appeal.
I have considered the address as made and also the Reply address of the 1st and 2nd-4th Respondents and I am persuaded that the suits at the Federal High Court was not the same on similar reliefs as one in the petitions, although parties are the same and the subject matter are the same.
While it has been held that suits intended to deepen democratic experience and to ventilate ones political right may not be held to be an abuse of court process, one also finds that the actions at the Federal High Court were not exclusively pre- election matters, but claimed additional reliefs that ought have been sought at the Elections Tribunal, as was subsequently done at the Tribunal.
The cases of Umeh Vs Iwu and in particular Dingyadi Vs INEC referred to by all counsel shall determine this issue on the grounds whether the parties are the same, the issues are the same, subject matter and reliefs are same or similar.
In the circumstances, I am of the view that the petition instituted by the Appellant herein at the trial Elections petition Tribunal may constitute a multiplicity of action if the cause of action and reliefs are the same as those at the Federal High Court. But are they? I will answer shortly. Notwithstanding that the other petition before the Tribunal was that filed by the Appellant’s party (Labour Party), it is my view that being the sponsoring party there was no hindrance in the 2 petitioners coming together as co-petitioners in the same petition. To subsequently file the present petition where petitioner is rightly a privy to the Labour party (thus making the parties as same under the doctrine of estoppel may trigger or suggest a reason to consider the petition as an abuse of court process; but I dare think otherwise and say however that I have not been shown nor have I in my strenuous perusal of the volumes of the record of proceedings in this appeal been able to find any legal evidence of abuse of process as the reliefs claimed at the Federal High Court were no doubt different from the reliefs claimed at the Tribunal. (See page 55 of the record for the motions at the Federal High Court).
The exclusive jurisdictional competence of the Federal High Court in pre election matters and under the common Law and Constitution/Statute to entertain suits for prerogative and equitable reliefs and to issue prerogative orders cannot be abolished by the view that instituting suits there-at as done and coming to the Election Tribunal subsequently was abusive of the tribunal’s process. It was not. It cannot be an abuse of court process for a litigant to exercise his right as by law provided. When a citizen believes that his civil rights and obligations have been breached or interfered with, he may apply to the appropriate high court as in this case for relief. Equity aids the vigilant and not the indolent! This is more so that the appellant did not at the Federal High Court ask that he be returned as duly elected into the office he wanted to participate in the contest thereof by the exercise of the order of Court compelling the body charged to perform its statutory duty and to refrain from doing anything prejudicial to his right. Although this Court (at its Lagos Division) in Miss Nkiru Nzegwu Amobi V.Mrs. Grace O. Nzegwu and Others (2005) 12 NWLR (PT 928) 120 at 143 had stated thus:
“It is undoubtedly an abuse of court process for a litigant to initiate concurrent suits in respect of the same reliefs before the same court and / or different judges … It was not open to the court to consider the very process that had been established to be illegal and incompetent. The correct procedure for the lower court to resort to was to stay or strike out the subsequent suit”.
It is to be noted however that a common feature of the term “abuse of court process” is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. A court of Law which is also a court of justice will always prevent the improper use its machinery and will not allow it to be used as a means of vexatious and oppressive behavior in a process of litigation. See Ette V. Edoho (2009) 8 NWLR (pt 1144) page 601 per Awoade, J C A. At page 610 of the report, Omokri, J.C.A stated bluntly that such proceedings are not brought bonafide in the sense that they are brought mainly to annoy, irritate or harass the opponent, or are calculated to impede the iniquities appurtenant to the aim and purpose of the action. The term also connotes that the powers of the court must be used bonafide and properly and it must not be abused”. There is no abuse of court process in subsequently asking for the other relief of nullification based on alleged wrongful exclusion of candidature before the forum meant for it i.e. the Elections Petitions Tribunal. Issue 3 is resolved in favour of the appellant and against the respondent.
ISSUE 4
On whether the Tribunal was right to have struck out the petitioner’s written address filed on 18/6/11 for being signed for his counsel on the ground that it was irregular, the short answer is that the Tribunal was right in so doing. That a process shall be signed by a party or his legal practitioner is so notorious that it needs no citation of authorities. Suffice it to state that the cases of Nweke vs Okafor ; Edet vs. Chief of Air Staff (1994) 2 NWLR (pt 324) 41 at 65 to 66. have sealed the position of the Law.
The irregularly signed process could not, however, be waived under paragraph 53 (1) of the first schedule to the Electoral Act 2010 as amended as it was a violation of a mandatory Legal stipulation under the Legal Practitioners Act, 2004 LFN and not merely a non compliance with procedural requirements under the first schedule to the Electoral Act which had not occasioned a miscarriage of justice.It is pertinent to also point out that the petitioner was not prejudiced by the order striking out that petitioner’s Address as the petitioner’s counsel had conceded to the irregularity and had applied for waiver thereof on the claim that further steps had been taken by the respondents. Furthermore, a properly signed petitioner’s address was subsequently filed in substitution; and the petition was however not dismissed upon the reason of the address being irregularly signed. Indeed a resolution of this issue even if it were in appellant’s favour would confer no benefit but stands as a mere academic exercise. As William Shake Spear put it in his “AS YOU LIKE IT”: “A tale full of sound and fury, and signifying nothing”.
In Mustapha .Vs. Corporate Affairs Commission 2009 (pt 1142) 8 NWLR page 43 at 51, this court per Aboki, JCA had this to say as to a finding of fact of a Trial court, thus: “An Appellate court will not interfere with the finding of fact of the Trial Court unless when it is clear that the finding is perverse and not flowing from the facts relied upon or Is not a proper exercise of judicial discretion. See Amasikwe VS Registrar- General CAC (2006) 3 NWLR (pt 968) 462 at 493 to 495; Agunbiade Vs State (1999) 4 NWLR (pt 599) page 39 “. The Learned Senior Counsel for the appellant is recorded in the judgment at page 30 of the record as having acknowledged the irregularity and was commended by the court for that sense of forthrightness and responsibility. These findings had not been challenged. I am surprised to find the issue raised on appeal. The finding of facts in this issue was justified as, at page 14 of the reply by B.A.M Fashanu (San) to the first Respondent’s motion filed on 7/7/11 (See Vol. 3 of the record) is contained the Learned Counsel’s admission. This issue is therefore resolved in favour of the respondent and against the appellant.
In Conclusion , it should be noted that all the live issues i.e. issues 1,2 and 4 have been resolved in favour of the Respondents and against the Appellant; and notwithstanding the resolution of issue No. 3, in favour of the appellant the appeal cannot succeed because the Appellant has not raised or addressed any issue on the ratio decidendi of the decision of the lower Tribunal; and since an appeal is decided on the basis of the issues raised and as emanating from grounds of appeal and the ratio of the judgment , I have no option than to dismiss the appeal as lacking in merit. Appeal is accordingly dismissed. A cost of N30,000 (Thirty Thousand Naira only) is awarded against the Appellant and in favour of the 1st Respondent only.
HELEN MORONKEJI OGUGNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA and I am in complete agreement with his reasoning and conclusions. I will add a few words.
This appeal stems from the Ruling of the National and State House of Assembly Election Petition Tribunal sitting as a court with Original Jurisdiction, as provided under Section 285 (2) of the Constitution of the Federal Republic of Nigeria, 1999 delivered on 5th September, 2011, as contained on pages 346 – 379 of Volume 1 of the Record of Appeal, wherein the Lower Tribunal dismissed the Petitioner’s Petition.
Dissatisfied with the Ruling of the Lower Tribunal, the Appellant filed a Notice of Appeal containing Nine (9) grounds, dated 16th September, 2011 as contained on pages 380-391 of Volume 1 of the Record of Appeal.
The facts which led to this appeal are as follows:
Upon conclusion of the election into the Lagos Central Senatorial District on 9th April 2011, the 1st Respondent was adjudged by the 2nd Respondent to have polled the majority of lawful votes cast at the said election was returned as winner.
Dissatisfied with the return of the 1st Respondent as the duly elected Senator, Labour Party, which sponsored the Appellant herein filed a petition on 28th April 2011 on the sole ground that its validly nominated candidate was unlawfully excluded from the election.
Issues were joined in this court and parties filed briefs. The appeal will be decided on the issues as identified by the Appellant’s counsel. They are stated below:
“1. Whether having held that an application for prehearing notice should be by letter and that the prehearing sessions are null and void, thus set-aside, the Election Tribunal was right in assuming jurisdiction over the Respondent’s Motion before it and dismissing the Election Petition based thereon? (Grounds 1 & 2).
2. Whether the dismissal of the Petition based on the 1st Respondent’s Motion filed on 11th June 2011 was pre-emptive of the time allowed the Petitioner to apply for prehearing notice having filed a Petitioner’s Reply, and, if so, whether the said application, the proceedings and ruling thereupon are null and void? (Grounds 3, 4 and 5)
3.Whether, in any event, the dismissal of the Petition for abuse of court process was not wrong?(Grounds 6,7 and 8)
4. Whether, the Election Tribunal was right, in the circumstances, to strike out the Petitioner’s written address filed on 18th June 2011? (Ground 9).
On issue 1, I am of the view that the issue is completely misconceived. The records shows that several motions had been taken and argued by the Tribunal and all of them had been adjourned for ruling. This was procedure agreed to by all counsel in the case and to which the Tribunal graciously acceded on 8th July 2011. Thereafter the Tribunal in one fell swoop proceeded to consider all the pending applications in the ruling delivered on 5th September 2011. In the event, it considered the application to dismiss the Petition for failure to apply for prehearing by motion on notice first, found against the Petitioner and dismissed the Petition on that point.
The Tribunal then proceeded to consider all the other applications already moved and gave considered opinion on them. I am of the humble view that the Tribunal was right in doing so. Indeed it had a duty to do so since a court particularly a court of first instance must consider all issues submitted to it for determination. See: MAGNA MARITIME SERVICES LTD. & Anr. V. S. A. OTEJU & Anr. (2005) 5 SCNJ 100. Pre hearing is a matter of jurisdiction. The court of first instance decided all the applications and did not abdicate its duties. The fact that the first issue decided the jurisdictional issue of prehearing notice against the petitioner did not debar it from deciding other motions. I must say the couching of this issue worried me. The court cannot go outside the issue as couched by learned senior counsel and the argument in support of same. There was no challenge to the ruling of the Tribunal which terminated the petition in the arguments canvassed by counsel. In effect, counsel asked us to consider whether it was rights for him to have been pinched after he was severely punched and knocked out. Whichever way this issue was resolved did not advance the case of the Appellant. That issue is resolved in favour of the Respondent.
On issue 2, the question of the pre emptiveness of the Tribunal with Respect to the time allowed to file pre-hearing motion did not arise. Assuming that the 1st Respondent’s motion to dismiss the petition for failure to apply for pre hearing was filed pre-emtively, it did not freeze the time from running. In any event no miscarriage of justice was caused to the Appellant by the fact that there was an initial mistake as to computation of time which was corrected after it was brought to the notice of the trial Judge. The petition was dismissed not because the pre-hearing application was filed out of time but because it was by letter. This issue is resolved in favour of the Respondent.
ISSUE 3
Having considered the record and the arguments of the learned counsel on both sides, I am of the view that since there are three pending litigation before the law courts in respect of both pre election and post election complaints of the Appellant and the parties and reliefs are different, it cannot be said that the suits constitute an abuse of court process. Possibly the later suit filed before the Lagos Division of Federal High Court after the Abuja High Court proceedings was initiated is an abuse of the process of the Federal High Court but it cannot be an abuse of the process of this court. The prayers sought in the suits at the Federal High Court are different from the prayers here. Those prayers were activated by events which occurred before the election was conducted. The prayers in this court were activated by events which occurred during the election. In any event, the petitioners in both election petition cases before the Lower Tribunal filed separate petition as the candidate and as the sponsoring political party respectively. In the circumstances there cannot be said to be abuse of court process given the circumstances of this petition vis a vis the concurrent petition by the party. This issue is resolved in favour of the Appellant.
On issue 4, the Appellant’s counsel had admitted that his written address filed on 18th June, 2011 was irregular because it was signed by someone for him and he urged this court to treat the lapse as an irregularity. We are not minded to do so. In litigation, parties and their counsel are not encouraged to treat court processes with levity. Moreso, when there is direct non compliance with the rules of court which must be obeyed. The decision of the Tribunal is right and proper and is hereby affirmed. This issue is resolved against the Appellant.
In view of the fact that the issues as couched and argued by the Appellant’s counsel did not call for a determination of whether the final order of the Tribunal dismissing the petition on the sole basis of the pre-action notice was proper, this court has no jurisdiction to make any decision or consequential orders to that effect. In the circumstances having resolved majority of the live issues in favour of the Respondents, the appeal is dismissed. N30,000.00 costs to the 1st Respondent against the Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft the Judgment of my brother Judge M.A. DANJUMA JCA and I agree with the reasoning and conclusions arrived thereat and I consequently adopt same as mine.
By way of emphasis on Issue No. 3 as formulated by the Appellant, I must say that not every application filed amounts to abuse of Courts’ process.
Abuse of Courts’ process postulates a situation where the process of the Court has not been used bonafide or where the new action is malafide. CBN VS AHMED & 2 ORS 2001. FWLR Part 56 at 670 at 672.
It includes improper use of legal process and abuse of legal procedure. And what the Court would do where process is abused is to dismiss the process.
Where the Court’s process is used as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused, this amounts to an abuse of Courts’ process.
Even where a party strictly complies with the literal terms of rules of Court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process CASTANVHO VS BROWN AND ROOT (U.K) LTD 1981. AC. 557.
As aptly put by GALINJE JCA in INTERNATIONAL BANK FOR WEST AFRICA (AFRIBANK NIG. PLC. VS. FOLA SASEGBON (2007) 16 NWLT Pt. 1059. Pg. 195. “An abuse of Courts process is a product of facts” and this can be gleaned from affidavit evidence.
It is evident that from the argument of learned counsel for the respective parties, there are three pending matters before the law Courts in respect of both pre-election and post-election grievance. The parties in these three are different and indeed the reliefs/prayers sought from the Federal High Court are different from the ones sought here. It is on record that the Petitioners in both election petition cases at the lower Tribunal filed separate petitions, one as the candidate and one as the Political Party sponsoring.
To say that there is an abuse of Courts process in the circumstances would be a misconception, and in fact the Respondent has not indicated whether the filing of these suits was prejudicial to his cause.
For this reason and for the fuller reasons in the lead Judgment, this issue is hereby resolved in favour of the Appellant.
I adopt the consequential order made.
Appearances
B. A. M Fashanu (SAN) with Z. A. Animashaun, E. O. Ashade, A. S. Ayoade, O. A. Adeogun (Mrs) for the Appellant.For Appellant
AND
Chief Wole Olanipekun (SAN) with Olapade Olanipekun, Ayo Adesomi, Winifred Olanipekun, Muyiwa Ogun Kolade and Abimbola Ojenike for the 1st Respondent. Kola Awodein (SAN) for 2nd – 4th Respondents (with him is Benjamin Omoniyi Esq.).For Respondent
